Banishment of sex offenders: liberty, protectionism, justice, and alternatives.

• Author: Saxer, Shelley Ross

Although most sex offenses are committed by relatives or acquaintances of the victims, our public policy approach has been to focus on the stranger sex offender and punish sex offenders through residency restrictions. These residency restrictions effectively banish these locally undesirable and dangerous individuals from our communities in fear that they may reoffend in our neighborhoods. Rather than being thrust into some wilderness, sex offenders are "banished" to neighboring counties or states and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders.

Banishing sex offenders through these residential restrictions impacts individual liberty, our national structure, and social policy considerations. This Article offers a legal analysis of the adverse impacts these restrictions impose on the constitutional rights of both sex offenders and our communities, which for economic or political limitations do not have the appropriate representation to mitigate these consequences. This Article also examines what methods from the environmental justice movement might be available to deal with the "social justice" issue of sex offenders disproportionately burdening poor, minority communities. Finally, because there is not yet evidence to support the efficacy of residency restrictions on sex offender recidivism, this Article concludes that legislators should reexamine the current trend of using residency restrictions to address concerns about sex offender recidivism. Instead, public policy decision makers should look toward alternatives, such as individualized risk assessment and management of these individuals, so that public resources can be properly directed to confine, monitor, and treat those sex offenders most likely to commit serious reoffenses.

TABLE OF CONTENTS INTRODUCTION I. BANISHMENT OF SEX OFFENDERS A. The Problem of Sex Offenders in Society B. Banishment as an Alternative to Incarceration C. Banishment Through Sex Offender Residency Restrictions II. INDIVIDUAL RIGHTS CHALLENGES TO RESIDENCY RESTRICTIONS A. Due Process Challenges B. Self-Incrimination and Cruel and Unusual Punishment Challenges C. Ex Post Facto Challenges D. Takings Challenges E. Private Restrictive Covenants III. NATIONAL CHALLENGES TO BANISHMENT: PROTECTIONISM AND THE DORMANT COMMERCE CLAUSE IV. ENVIRONMENTAL JUSTICE AND DISPROPORTIONATE SITING OF SEX OFFENDERS V. ALTERNATIVE SOLUTIONS A. The Criminal Approach: Confinement & Monitoring B. The Mental Illness Approach: Treatment CONCLUSION INTRODUCTION

Banishment is "a form of punishment imposed on an individual, usually by a country or state, in which the individual is forced to remain outside of that country or state." (1) It is also a traditional criminal sentence used by Native American tribes, to expel an offender "for the protection of the community." (2) Although most of us may think of banishment as archaic or tribal, it is still used in some states as punishment, (3) and it appears to be the underlying basis of some of the recent legislation attempting to protect society against sex offenders. (4) About two dozen states and hundreds of local governments have created legislation to exclude sex offenders from living within proscribed areas around schools, parks, day care centers, or areas where children are known to congregate. (5) Part I of this Article views state and local exclusionary residence laws in the context of banishment, as it was historically understood, and explores how courts and policy makers view this concept as applied to sex offenders.

Recent cases have shown that courts are upholding the constitutionality of such restrictions, (6) although the Georgia Supreme Court struck down such a restriction on the constitutional ground that Georgia's law operates as a regulatory taking of property without just compensation. (7) Part 11 briefly discusses the major constitutional challenges to these residency restrictions. It also examines the potential challenges to private restrictive covenants created to exclude sex offenders from moving into privately controlled residential areas.

The practical effect of banishment on a national level must be understood in the context that there are few places in modern-day America to which a sex offender may be banished that are isolated from the rest of society. Rather than being excluded and thrust into some undeveloped wilderness, sex offenders are banished through residency restrictions to neighboring counties or states (8) and into poor, minority neighborhoods where they often live in boarding houses with other sex offenders. (9)

Banishment also brings with it federalism concerns similar to those that arise when states or municipalities attempt to exclude hazardous waste disposal from within the state. Such protectionist legislation has been the fodder of many lawsuits claiming Dormant Commerce Clause violations. (10) Judicial and legislative efforts to banish sex offenders to other states may also run afoul of Dormant Commerce Clause principles, which operate to discourage states from such protectionist activities. Part III explores the nationalism concerns under the Dormant Commerce Clause when residency restrictions at the state and local levels "dump" sex offenders into neighboring jurisdictions.

Disproportionate siting of sex offenders into poor neighborhoods of color is a social disaster. These neighborhoods are often characterized by dense living conditions and less parental supervision, providing ample opportunity for convicted offenders to reoffend. (11) This overconcentration of offenders may also result in lowered property values and other adverse community impacts. (12) The federal government addressed a similar issue when studies in the late 1980s reported that hazardous waste sites were being placed near poor and primarily minority neighborhoods. In 1994, President Bill Clinton tried to remedy the problem with Executive Order 12,898, which required all federal agencies to consider, as a factor, the "disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations." (13) In addition to the public policy approaches taken to resolve environmental justice concerns, the Fair Housing Act has been considered an important litigation tool to address this indirect racism. Part IV examines what methods from the environmental justice movement might be available to deal with this social justice issue of sex offenders disproportionately burdening the unwary in poor minority communities. (14)

The banishment of sex offenders through residential restrictions, whether legislative or private, impacts individual liberty, the division of power between states and the federal government, and social policy considerations. This Article offers a legal analysis of the adverse impact these restrictions impose on the constitutional rights of the sex offenders and the rights of communities to which they have been effectively banished, which because of economic or political limitations lack the appropriate representation to mitigate these consequences. Finally, because "there is no evidence to support the efficacy of broadly-applied residential restrictions on sex offenders," (15) Part V briefly addresses alternative approaches to deal with concerns about sex offender recidivism.

1. BANISHMENT OF SEX OFFENDERS

1. The Problem of Sex Offenders in Society

   No one wants a sex offender or child molester living in his or her neighborhood. In this Article, the author has classified these individuals as Locally Undesirable and Dangerous Individuals (LUDIs), coining this phrase to indicate a similarity to those noxious land uses aptly named Locally Undesirable Land Uses (LULUs). (16) However, just as noxious land uses have varying degrees of danger, as in the case of a toxic waste site versus a municipal waste site, sex offenders may also be classified into different levels to indicate the risk associated with their behavior. The violent sexual predators, at the highest risk level to the community, would be roughly equivalent in degree to the presence of a nearby toxic waste site. Those offenders with a lesser sexual offense on record, such as indecent exposure, may still be of concern to the community, but generate a less adverse reaction similar to a community's desire to avoid a municipal waste siting. Communities and legislators have struggled to cope with concerns about the presence of these individuals in their neighborhoods after they have been released from prisons or other institutions. (17)

   Relatively little is known about sex offenders and how best to deal with them through treatment and the criminal justice system. (18) There is not agreement among the experts as to whether there is an efficacious sex offender treatment model. (19) More research, and the communication of these research results from professionals, needs to occur so that the public and the policy makers understand that most sex offenders will return to the community and that risk assessment, treatment, and management options should be considered from a science-based approach rather than an emotionally charged approach. (20)

   One major concern about these undesirable individuals is that they will reoffend and that the recidivism rate is higher for sex offenders than it is for other criminals. (21) Recent studies have shown that sexual recidivism is indeed a concern, as cumulative recidivism rates increase with time, even though individual offenders are less likely to recidivate the longer they remain offense-free in the community. (22) Unfortunately, there do not appear to be any published studies of sex offender recidivism that have shown treatments which have the "substantial ability to lower recidivism" rates. (23) In fact, some have concluded that sexual deviance and aggressive behavior "can be attributed to genetically and...